Di Felice, Fillizio v Bent, Everett Thomas & Ors [1982] FCA 319

Di Felice, Fillizio v Bent, Everett Thomas & Ors [1982] FCA 319

Although the circumstances would have justified security of $3,000 if jurisdiction existed, a single judge lacked power to order security for costs of the appeal, so the second respondents' security application was dismissed. To preserve the effectiveness of the appeal, which had a real possibility of success, the Court granted an injunction and stayed the earlier costs order, but only on the appellant's undertaking as to damages, diligent prosecution of the appeal, and payment of $3,000 into Court to be available for any costs order in favour of the second respondents.

Jurisdiction
Australia
Judgment Date
14 May 1982
Procedural Posture
Appeal Related Interlocutory Applications in Bankruptcy and Property Proceedings / Before a Single Judge After the Appellant Appealed to the Full Federal Court From the Dismissal of His Application; Applications for Security for Costs, an Injunction Pending Appeal, and a Stay of a Costs Order
Outcome
The second respondents' application for security for costs was dismissed. The appellant obtained a conditional injunction pending the earlier of the conclusion of the Brisbane sittings of the Full Court in August 1982, the conclusion of the hearing of the appeal, or further earlier order; the 28 April 1982 costs...
Legal Topics
['security for Costs of an Appeal' 'jurisdiction of a Single Judge' 'interlocutory Injunction Pending Appeal' 'stay of Costs Order Pending Appeal' "bankrupt Estate and Trustee's Proposed Sale" 'option to Purchase Leasehold Lands']
['practice and Procedure' 'bankruptcy' 'legal Aid' 'property Law'] ['security for Costs of an Appeal' 'jurisdiction of a Single Judge' 'interlocutory Injunction Pending Appeal' 'stay of Costs Order Pending Appeal' "bankrupt Estate and Trustee's Proposed Sale" 'option to Purchase Leasehold Lands']

Case Brief

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Procedural Posture

Appeal Related Interlocutory Applications in Bankruptcy and Property Proceedings / Before a Single Judge After the Appellant Appealed to the Full Federal Court From the Dismissal of His Application; Applications for Security for Costs, an Injunction Pending Appeal, and a Stay of a Costs Order

Legal Issues

  1. 1 ['Whether a single judge had jurisdiction under the Federal Court Rules to order security for costs of the appeal.' "Whether the bankrupt appellant, who had legal aid and was impecunious, should be required to provide security for the second respondents' costs." 'Whether the trustee and second respondents should be restrained from entering into or carrying into effect the option or agreement for sale pending determination of the appeal.' 'Whether the costs order made on 28 April 1982 should be stayed pending the appeal.']

Ratio Decidendi

Although the circumstances would have justified security of $3,000 if jurisdiction existed, a single judge lacked power to order security for costs of the appeal, so the second respondents' security application was dismissed. To preserve the effectiveness of the appeal, which had a real possibility of success, the Court granted an injunction and stayed the earlier costs order, but only on the appellant's undertaking as to damages, diligent prosecution of the appeal, and payment of $3,000 into Court to be available for any costs order in favour of the second respondents.

Court Disposition

The second respondents' application for security for costs was dismissed. The appellant obtained a conditional injunction pending the earlier of the conclusion of the Brisbane sittings of the Full Court in August 1982, the conclusion of the hearing of the appeal, or further earlier order; the 28 April 1982 costs...

Orders

  • ['The application of the second respondents that the appellant be ordered to give security for costs is dismissed.' 'Upon the usual undertaking as to damages of the appellant by his counsel, and upon condition that the appellant prosecute the appeal diligently, and upon condition that the appellant pay into court...